Working while unauthorized...what to do now?

[katgrl 14]

OK, husband entered on F-1 visa, overstayed now for 9-10 years. He has worked the past 4 years unauthorized. He was paid cash and didn't file taxes. We DON'T want to lie on the forms. I know that working while unauthorized and overstay are both overlooked with marriage-based AOS. We want to get our packet in ASAP before fees go up. So basically I need to know what to do about correcting his taxes. And can we go ahead and file our AOS showing unauthorized work and take care of taxes after? Or other suggestions for what we need to do...Thanks very much! The other thing is he is concerned that his employer will get in trouble because they didn't pay taxes. Personally I really doubt they are going to get into that detail-there are just too many people and secondly he needs to be concerned with himself and not his employer's mistakes. But, is there any truth to the fact that basically they are more concerned with the fact if he's able to adjust, rather than if his employer paid taxes...if you know what I mean.

[Aztec&Taino 144]

OK, husband entered on F-1 visa, overstayed now for 9-10 years. He has worked the past 4 years unauthorized. He was paid cash and didn't file taxes. We DON'T want to lie on the forms. I know that working while unauthorized and overstay are both overlooked with marriage-based AOS. We want to get our packet in ASAP before fees go up. So basically I need to know what to do about correcting his taxes. And can we go ahead and file our AOS showing unauthorized work and take care of taxes after? Or other suggestions for what we need to do...Thanks very much! The other thing is he is concerned that his employer will get in trouble because they didn't pay taxes. Personally I really doubt they are going to get into that detail-there are just too many people and secondly he needs to be concerned with himself and not his employer's mistakes. But, is there any truth to the fact that basically they are more concerned with the fact if he's able to adjust, rather than if his employer paid taxes...if you know what I mean.

The problem is that your now-husband did not only work being unauthorized, but he overstayed for a decade! Did he work using his own SSN? Or, because he got paid "under the table" there was no need for SSN and other legal requirements? I personally think your cause is complicated enough that it could be beneficial to obtain the help of an experienced immigration lawyer.

[Harpa Timsah 13,258]

No, no lawyer is needed. This situation is common for AOS people from non-K visas.

Anyway... I would just tell the truth... I am not sure that illegal employment can be used on the 864 form anyway, you might want to look into that.

As far as taxes, he can back-pay taxes. Not sure how that works with illegal employment...

I guess I was useless huh! lol... I mostly just wanted to counter the freak-out post about the lawyer

I bet there are others in similar situations to yours that will chime in.

Good luck!

[katgrl 14]

The problem is that your now-husband did not only work being unauthorized, but he overstayed for a decade! Did he work using his own SSN? Or, because he got paid "under the table" there was no need for SSN and other legal requirements? I personally think your cause is complicated enough that it could be beneficial to obtain the help of an experienced immigration lawyer.

Thank you for your concern. However, I disagree that hiring a lawyer to do this process is necessary. Both overstay and unauthorized work are somewhat common. He did not use any one else's SSN. By the way, my husband did do a consultation with a lawyer though.

Edited November 18, 2010 by katgrl

[katgrl 14]

No, no lawyer is needed. This situation is common for AOS people from non-K visas.

Anyway... I would just tell the truth... I am not sure that illegal employment can be used on the 864 form anyway, you might want to look into that.

As far as taxes, he can back-pay taxes. Not sure how that works with illegal employment...

I guess I was useless huh! lol... I mostly just wanted to counter the freak-out post about the lawyer

I bet there are others in similar situations to yours that will chime in.

Good luck!

Thank you very much. I certainly agree with you about not hiring a lawyer. I have no concern about that. I am not wanting to use his employment for the I-864 as I make enough to sponsor anyway. I also know he can pay back taxes, just not sure if this needs to be done before we send in AOS. And no you weren't useless . I do appreciate your post!

[Brad and Vika 129]

OK, husband entered on F-1 visa, overstayed now for 9-10 years. He has worked the past 4 years unauthorized. He was paid cash and didn't file taxes. We DON'T want to lie on the forms. I know that working while unauthorized and overstay are both overlooked with marriage-based AOS. We want to get our packet in ASAP before fees go up. So basically I need to know what to do about correcting his taxes. And can we go ahead and file our AOS showing unauthorized work and take care of taxes after? Or other suggestions for what we need to do...Thanks very much! The other thing is he is concerned that his employer will get in trouble because they didn't pay taxes. Personally I really doubt they are going to get into that detail-there are just too many people and secondly he needs to be concerned with himself and not his employer's mistakes. But, is there any truth to the fact that basically they are more concerned with the fact if he's able to adjust, rather than if his employer paid taxes...if you know what I mean.

Not sure what to tell you honestly, but I saw a recent post where a member was advised by an attorney to pay back taxes. The person in question presumably had some documentation (like a W-2) to calc out how much he owed. Since your husband doesn't have any way to prove how much he made, you might want to ask a lawyer about the right course.

[JimVaPhuong 4,863]

The thing is that there is a specific provision in INA 245 that overstay and working without authorization are not factors when adjudicating the adjustment of status for an immediate relative of a US citizen. However, there is no similar provision in the INA to forgive a tax absconder. Willful tax evasion is a crime of moral turpitude, which means an alien can be refused admission for it, or deported if they've already been admitted to the US.

If he reports that he was employed then he must pay his taxes.

His employer could, potentially, get into trouble for this, even if he now pays his back taxes. There are ways his employer could have covered his tail to avoid this, such as hiring him as a contractor and issuing a 1099 at the end of each year. He'd still need to get a tax ID number from the contractor for this, though.

It's true that USCIS doesn't pursue tax absconders. They don't have to. They just report them to the IRS, and let the IRS go after them. USCIS does go after employers who employ unauthorized workers.

I don't see any way he could report his unauthorized employment to USCIS and not risk getting either himself or his employer into trouble.

[katgrl 14]

The thing is that there is a specific provision in INA 245 that overstay and working without authorization are not factors when adjudicating the adjustment of status for an immediate relative of a US citizen. However, there is no similar provision in the INA to forgive a tax absconder. Willful tax evasion is a crime of moral turpitude, which means an alien can be refused admission for it, or deported if they've already been admitted to the US.

If he reports that he was employed then he must pay his taxes.

His employer could, potentially, get into trouble for this, even if he now pays his back taxes. There are ways his employer could have covered his tail to avoid this, such as hiring him as a contractor and issuing a 1099 at the end of each year. He'd still need to get a tax ID number from the contractor for this, though.

It's true that USCIS doesn't pursue tax absconders. They don't have to. They just report them to the IRS, and let the IRS go after them. USCIS does go after employers who employ unauthorized workers.

I don't see any way he could report his unauthorized employment to USCIS and not risk getting either himself or his employer into trouble.

Thank you! I honestly didn't think that whole thing through about USCIS wanting to go after employing unauthorized workers. Makes complete sense. Ok another question, some of his income was made through a company that is foreign-based. He had a counterpart in another country and she'd send him a certain percentage of the profits. Does anyone know how this would have to be handled? (edit) Or basically since it was foreign-based income, would he have to pay taxes on it? I realize that's more of a tax question than an immigration one, but just in case someone would know the answer. I appreciate it!

Edited November 18, 2010 by katgrl

[Brother Hesekiel 2,236]

Here is the advice I'm giving people in your husband's situation.

Because they know your husband was a US resident, and they know that residents have to pay taxes (lawful and unlawful residents), they would like to see both or your tax returns. When my wife and I filed for AOS, we submitted the past 3 years of tax returns. For year 1 and 2 we submitted her and my tax returns (4), and for year 3, when we were already married, we submitted a jointly filed tax return, for a total of 5.

In order to do that, all your husband has to do is file taxes for 2007, 2008, and 2009 late. If his income was low, that's really not a big deal, whereas NOT filing is tax evasion, a crime, punishable by prison. Another perk is that he will need 10 years of payments into SS anyway in order to get anything out, so here's his chance to get 3 years in one strike, only 7 to go.

That way, when asked at the interview if he worked, he doesn't have to lie and he doesn't have to reveal that he evaded taxes. He can say: "yes, I flied taxes. My last 3 years are in the AOS file." Doesn't that sound great?

Edited November 18, 2010 by Just Bob

[Deputy Purple 1,294]

Ok another question, some of his income was made through a company that is foreign-based. He had a counterpart in another country and she'd send him a certain percentage of the profits. Does anyone know how this would have to be handled? (edit) Or basically since it was foreign-based income, would he have to pay taxes on it? I realize that's more of a tax question than an immigration one, but just in case someone would know the answer. I appreciate it!

That's not "Foreign based income", the work was performed in the US and could have provided income for a US Citizen. He was self-employed and received 100% commission from the to company for his WORK IN THE US.

[katgrl 14]

That's not "Foreign based income", the work was performed in the US and could have provided income for a US Citizen. He was self-employed and received 100% commission from the to company for his WORK IN THE US.

Actually none of the work was performed in the US per se...except that he had an ownership in the company. All of the work was done in another country, and the counterpart that was in the other country sent him the funds in foreign currency (I believe.) That's why I wasn't sure.

[Rob and Jill 82]

Keep in mind that he is potentially subject to interest and penalities for the back taxes, and that he will probably OWE taxes to the IRS.

Also, as scary as this might sound...

Go ahead and call the IRS. Do it from a public phone if it makes you feel better and you can stand sitting on hold that long. While the wait to talk to them is horrid, I have ALWAYS had them be very helpful in sending what I needed and answering ALL of my questions and in a polite efficient manner. You should be able to find someone there who will give you all of the answers you need and in a timely manner. Here is their info:

Telephone Assistance for Individuals:

Toll-Free, 1-800-829-1040

Hours of Operation: Monday – Friday, 7:00 a.m. – 10:00 p.m. your local time (Alaska & Hawaii follow Pacific Time).

[Deputy Purple 1,294]

Actually none of the work was performed in the US per se...except that he had an ownership in the company. All of the work was done in another country, and the counterpart that was in the other country sent him the funds in foreign currency (I believe.) That's why I wasn't sure.

Then he didn't work, that revenue from a foreign source, I think only LPR & USC have to pay taxes on foreign income.

[NVC FAN :( 18]

i would not give any advice on how to not pay or portray that you did pay when in fact you did not. even though these will be forgiven, that tax issue is a crime. ask wesley!

[Harpa Timsah 13,258]

[quote name=NVC FAN ' timestamp='1290130407' post='4299218]

i would not give any advice on how to not pay or portray that you did pay when in fact you did not. even though these will be forgiven, that tax issue is a crime. ask wesley!

Yeah, Wesley is a good dude.